Ground 1: sentence for count 2 manifestly excessive
16The challenge to the sentence for count 2 was confined to the length of the parole period, the non-parole period of three years being accepted to be open to the sentencing judge. The applicant submitted that a term of eight years for count 2 was manifestly excessive.
17Ground 1 focuses entirely upon the sentence imposed on count 2. A narrow focus on the sentence imposed on one of several counts may introduce an element of artificiality given that the sentencing judge has had regard to principles concerning concurrency, accumulation and totality in passing sentences for all offences: cf R v Thalari [2009] NSWCCA 170; 75 NSWLR 307 at 320 [82].
18I consider that the sentence of eight years on count 2 was not unreasonable or plainly unjust: Markarian v The Queen [2005] HCA 25; 228 CLR 357 at 370-371 [25]. The relationship between the non-parole period and the balance of term on that count is to be understood by reference to the total effective sentence imposed for all three offences, so that the non-parole period itself is not manifestly excessive.
19As part of his challenge to the sentence for count 2 the applicant contended that the sentencing judge had not adequately taken into account the effect of the applicant's mental illness. This contention was not expressed in the ground of appeal, but it was developed in the course of oral argument before this Court, purportedly in support of ground 1.
20The submissions made in this Court were markedly different to those advanced before the sentencing judge. This Court has expressed concern about this approach recently in Zreika v R [2012] NSWCCA 44 (Zreika) at [79] - [81]. As was said in Zreika, this court is a court of error. In sentencing appeals the Court is reviewing the exercise of a discretionary judgment. An appeal to this Court is not an opportunity to recast the case presented to the sentencing judge. I propose nevertheless to consider the submissions to determine whether error has been demonstrated.
21The applicant relied on R v Hemsley [2004] NSWCCA 228 (Hemsley) at [33] - [36], where Sperling J, with whom Grove and Dowd JJ agreed, said that ways in which mental illness may be relevant to sentencing included the following:
(1) Where mental illness contributes to the commission of the offence in a material way, the offender's moral culpability may be reduced and there may not be the same need for denunciation and punishment;
(2) Mental illness may render the offender an inappropriate vehicle for general deterrence and moderate that consideration; and
(3) Mental illness may have the effect that a custodial sentence weighs more heavily on the offender;
22The first factor was expressly eschewed by the applicant's counsel in the sentence hearing in the following terms:
"there is no evidence of any causal connection between his mental health problems and the offence"
23This concession was consistent with the history the applicant is recorded to have given to Justice Health, the report of which records that BT "denied that any psychotic symptoms were particularly related to the index offence".
24Notwithstanding the concession made before the sentencing judge, the applicant contended in this Court that the point was still open, having regard to the following passage in the Justice Health report dated 17 June 2010:
"[BT] told Dr Kasinathan on arrival to the Bronte Unit, that his psychotic symptoms were not related to the index offences. [BT] continued to deny that psychotic symptoms were directly over [sic] to his alleged commission of the index offences. However, on 26 November 2009, [BT] told Dr Kasinathan that the voices may have said 'bend him [the victim] over.' This was more consistent with a commentary nature of his voices, rather than any commanding nature of the psychotic symptoms in relation to the alleged offences."
25The offences were committed in March 2009. The applicant was admitted to the Bronte Unit at the Forensic Hospital on 1 September 2009. He maintained his denial of any causal link between his offending behaviour and his mental condition until 26 November 2009. That the applicant did not give evidence at the sentence hearing affects the weight to be given to the history recorded in the report: R v Wright (1997) 93 A Crim R 48 (Wright) at 52, per Hunt CJ at CL. There was no investigation of the possible reasons for the inconsistency between what the applicant told Dr Kasinathan prior to 26 November 2009 and what he said on that day. Such investigation would have been irrelevant having regard to the concession and difficult, if not impossible, to undertake, in any event, since the applicant did not give evidence.
26In Zreika, this Court said, at [81]:
"The court will not lightly entertain arguments that could have been put, but were not advanced on the plea, and will have an even greater reluctance to entertain arguments that seek to resile from concessions made below or are a contradiction of submissions previously made."
27In light of the concession and the circumstance that the applicant did not give evidence at the sentence hearing I am not persuaded that the sentencing judge erred in any respect in taking into account mental illness.
28As to the second factor, the applicant contended that the applicant's mental illness made him an inappropriate vehicle for general deterrence.
29It is an accepted principle of sentencing that general deterrence may be given less weight in the case of an offender suffering from a mental disorder or abnormality because such an offender is not an appropriate medium for making an example to others: Hemsley; Muldrock v R [2011] HCA 39; 244 CLR 124. However, if the offender acts with knowledge of what he is doing and with knowledge of the gravity of his actions, the moderation need not be great: Wright. It is important to ensure that the subjective features of the offender do not outweigh the significance properly to be attached to the objective features of the case: Wright at 55, per Gleeson CJ.
30In the Remarks on Sentence (ROS), the sentencing judge accepted that the applicant may not have been fully aware of the consequences of his actions because of his "level of immaturity and by reason of the mental health issue set out within the forensic psychiatrist's report and the Juvenile Justice background report".
31After referring to the material tendered, including psychiatric evidence, the sentencing judge said:
"That material sets out what in many ways can only be described as a tragic background. The lack of role models, the physical, sexual and emotional abuse and neglect to which he was subject over many years has been exacerbated by his abuse of illicit substances and alcohol and that in turn has exacerbated what is clearly a latent serious mental health issue noting Dr Goh's diagnosis of paranoid schizophrenia. It is a tragic background and close examination of it, at least in some way, makes explicable this otherwise inexplicable conduct of 7 and 8 March 2009."
32In my view, the ROS and, in particular, the passage set out above, indicate that the sentencing judge gave the applicant's mental condition such weight as was appropriate.
33As to the third factor, the applicant's submissions can be dealt with shortly. The sentencing judge found special circumstances and can be taken to have accepted that time in custody would weigh more heavily on the applicant. There is no challenge to the finding of special circumstances or the appropriateness of the non-parole period. In these circumstances I am not persuaded that the sentencing judge erred in taking into account the third factor.